1.1 These are the “Terms and Conditions” as referred to in your Services Agreement.
1.2 As set out in your Services Agreement, these Terms and Conditions together with your Services Agreement constitute your Agreement with the Service Provider for the provision of the Services.
DEFINITIONS AND INTERPRETATION
2.1 In these Terms and Conditions the following words and phrases shall, unless the context indicates otherwise, have the following meanings:
“Affiliate” means any entity which, directly or indirectly controls, is controlled by, or is under common control in the Ipes group
“Agreement” means the Services Agreement and these Terms and Conditions each as amended from time to time in accordance with their terms
“Anti‐Money Laundering Regulations” means, as the context permits and without limitation:
(a) The Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Law, 1999 (as amended) together with any regulations made thereunder and guidance notes issued pursuant thereto;
(b) The Proceeds of Crime (Jersey) Law 1999, the Money Laundering (Jersey) Order 2008 (each as amended) and the Handbook for the Prevention and Detection of Money Laundering and the Financing of Terrorism for Regulated Financial Services Businesses pursuant thereto together with any regulations made thereunder and guidance notes issued pursuant thereto;
(c) The Proceeds of Crime Act 2002 of the United Kingdom, The Financial Services and Markets Act 2000 of the United Kingdom, the Terrorism Act 2000 of the United Kingdom, and the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 of the United Kingdom (each as amended) together with any regulations made thereunder and guidance notes issued pursuant thereto; or
(d) the Luxembourg law dated 12 November 2004 on the fight against money laundering and terrorist financing (as amended) together with any regulations made thereunder and circulars issued pursuant thereto;
“Applicable Law” means:
(a) in relation to a Serviced Entity incorporated or registered in Guernsey, the laws of the Island of Guernsey;
(b) in relation to a Serviced Entity incorporated or registered in Jersey, the laws of Jersey together with any relevant codes of practice, policy statements or guidance notes published by the Jersey Financial Services Commission;
(c) in relation to a Serviced Entity incorporated or registered in England and Wales, the laws of England and Wales;
(d) in relation to a Serviced Entity incorporated or registered in Scotland, the laws of Scotland;
(e) in relation to a Serviced Entity incorporated or registered in Northern Ireland, the laws of Northern Ireland; or
(f) in relation to a Serviced Entity incorporated or registered in Luxembourg, the laws of Luxembourg;
“Authorised Person” means the person named as such in the Services Agreement or any person who has subsequently been notified in writing to the Service Provider as having authority to act for and on behalf of the Serviced Entity or to issue instructions to the Service Provider or any person that the Service Provider reasonably believes is so authorised;
“Business Day” means:
(a) in so far as the Agreement relates to the provision of services by Ipes Guernsey, a day on which commercial banks are generally open for business in Guernsey;
(b) in so far as the Agreement relates to the provision of services by Ipes Jersey, a day on which commercial banks are generally open for business in Jersey;
(c) in so far as the Agreement relates to the provision of services by Ipes UK, a day on which commercial banks are generally open for business in London; or
(d) in so far as the Agreement relates to the provision of services by Ipes Luxembourg, a day on which commercial banks are generally open for business in Luxembourg;
“Data Protection Authority” means any Supervisory Authority (for the purposes of the GDPR) or any other any relevant data protection authority in the territories where Personal Data is processed or to which it is transferred and including any successor authorities as may subsequently be established under Data Protection Laws.
“Data Protection Laws” means the Luxembourg ‘Law of 2nd August 2002 on the Protection of Persons with regards to the Processing of Personal Data’, the Data Protection (Jersey) Law 2005, the Data Protection (Jersey) Law 2018, the Data Protection (Bailiwick of Guernsey) Law, 2001 , the Data Protection (Bailiwick of Guernsey) Law, 2017, the UK Data Protection Act 1998 and the Irish Data Protection Act 1988 together with any successor legislation the Directive and the GDPR (as amended or replaced from time to time), guidance, directions, determinations, codes of practice, circulars, orders, notices or demands issued by any Data Protection Authority and any applicable national, international, regional, municipal or other data privacy authority or other data protection laws or regulations in any other territory in which the Personal Data is processed or to which it is transferred.
“Data Security Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Personal Data.
“Data Subject Rights” means the Rights of Data Subjects as referred to and defined in Chapter III of the GDPR.
“Directive” means the European Electronic Communications Directive 2002/58/EC.
“Employees” means all officers, directors, employees, consultants, agents, advisers and other delegates of the Service Provider;
“GDPR” means, the General Data Protection Regulation EU 2016/679
“Proper Instructions” means instructions received by the Service Provider from an Authorised Person in accordance with the Agreement, given in the English language (a) in writing and purported to be signed (and reasonably believed to have been signed) by an Authorised Person; or (b) by electronic transmission and purported to be signed (and reasonably believed to have been signed) by an Authorised Person. For the avoidance of doubt, instructions by telephone shall not be “Proper Instructions” within the meaning of this definition;
“Service Provider” means, as the context permits:
(a) Ipes (Guernsey) Limited, a non‐cellular company limited by shares incorporated in Guernsey with company number 33475 and having its registered office at 1 Royal Plaza, Royal Avenue, St. Peter Port, Guernsey GY1 2HL (“Ipes Guernsey“);
(b) Ipes Director Services (Guernsey) Limited, a non‐ cellular company limited by shares incorporated in Guernsey with company number 59717 and having its registered office at 1 Royal Plaza, Royal Avenue, St. Peter Port, Guernsey GY1 2HL (“Ipes Director Guernsey“);
(c) Ipes (Jersey) Limited, a company incorporated under the laws of Jersey with number 99112 and having its registered office at 6th Floor, 37 Esplanade, St Helier, Jersey JE2 3QA (“Ipes Jersey“);
(d) Ipes (UK) Limited, a company incorporated under the laws of England and Wales with number 05648495 and having its registered office at 9th Floor, 1 Minster Court, Mincing Lane, London, EC3R 7AA (“Ipes UK“) and authorised and regulated by the United Kingdom’s Financial Conduct Authority;
(e) Ipes (Luxembourg) S.A, a société anonyme incorporated under the laws of the Duchy of Luxembourg with number B 150156 and having its registered office at 2‐8, Avenue Charles de Gaulle, L‐1653 Luxembourg Luxembourg, (“Ipes Luxembourg“); and/or
(f) Ipes Depositary (UK) Limited, incorporated under the laws in England and Wales with number 08749704 and having its registered office at 9th Floor, 1 Minster Court, Mincing Lane, London, EC3R 7AA (“Ipes Depositary“) and authorised and regulated by the United Kingdom’s Financial Conduct Authority;
“Serviced Entity” has the meaning specified in the Services Agreement;
“Services” has the meaning specified in the Services Agreement; and
“Services Agreement” means the agreement entered into between (1) the Serviced Entity and (2) the Service Provider for the provision of the Services.
2.2 In these Terms and Conditions, a reference to:
2.2.1 a statutory provision includes a reference to the statutory provision as modified or re‐enacted or both from time to time whether before or after the date of these Terms and Conditions and any subordinate legislation made or other thing done under the statutory provision whether before or after the date of these Terms and Conditions;
2.2.2 a document is a reference to that document as modified or replaced from time to time;
2.2.3 a person includes a reference to an individual, corporation, body corporate, joint venture, association or partnership (whether or not having separate legal personality);
2.2.4 a paragraph or schedule, unless the context otherwise requires, is a reference to a paragraph or schedule to these Terms and Conditions;
2.2.5 the singular includes the plural and vice‐versa (unless the context otherwise requires);
2.2.6 a time of day is a reference to the time in the jurisdiction in which the Service Provider is incorporated, unless a contrary indication appears;
2.2.7 a person includes a reference to that person’s successors and permitted assigns;
2.2.8 a matter being finally determined (and cognate expressions thereof) refers to the situation where a matter has been considered by a court of competent jurisdiction and a conviction, judgment or refusal of relief has been given and that conviction, judgment or refusal of relief has become final;
2.2.9 a conviction, judgment or refusal of relief becoming final (and cognate expressions thereof) means that it is not appealed against at the end of the period for bringing an appeal, or if appealed against, at the time when the appeal (or any further appeal) is disposed of;
2.2.10 an appeal being disposed of means where it is determined and the period for bringing any further appeal has ended, or if it is abandoned or otherwise ceases to have effect; and
2.2.11 “include”, “including”, “in particular” or “particularly”, “for example” or similar expressions shall be deemed to be followed by the words “(without limitation)”.
2.3 The headings in these Terms and Conditions do not affect their interpretation.
2.4 Controller, Processor, Data Subject, Personal Data, Special Categories of Personal Data, Processing, Sub‐Processor and Appropriate Technical and Organisational Measures shall have the meanings given to them in the GDPR.
CONTROL BY THE SERVICED ENTITY
3.1 In carrying out the Services, the Service Provider shall at all times be subject to the control and review of the Serviced Entity and shall:
3.1.1 in all respects observe and comply with:
(a) all Proper Instructions from the Serviced Entity;
(b) Applicable Law; and
(c) the Serviced Entity’s constitutional documents; and
3.1.2 subject to Applicable Law, hold any cash, securities, documents, or other property received by it on behalf of or to the order of the Serviced Entity as required, but may deposit such assets in bank accounts or with custodians selected by the Service Provider and approved by the Serviced Entity.
DUTIES OF THE SERVICED ENTITIES
4.1 The Serviced Entities shall:
4.1.1 provide the Service Provider with all such information, documentation and records relevant to the Services as the Service Provider may reasonably require to enable it to perform its duties;
4.1.2 keep the Service Provider fully informed as to the business, affairs and financial position of the Serviced Entities in so far as this is relevant to the Service Provider;
4.1.3 neither knowingly cause nor permit anything to be done which will or may be calculated to impose, or which may result in, any civil or criminal liability or penalty on the Service Provider or any of the Employees;
4.1.4 not require the Service Provider to, or place the Service Provider in a position where it may, breach any applicable law, rule or regulation;
4.1.5 unless otherwise agreed, maintain all necessary and customary insurance in connection with the Serviced Entities’ business (including, in the case of a company, full and valid directors’ and officers’ liability insurance) and provide evidence of such insurance to the Service Provider upon request;
4.1.6 immediately notify the Service Provider as soon as it becomes aware of any change to the identity of, without limitation, any of its directors or shareholders or ultimate beneficial owners or any other of its third party service providers or any change to any of the information previously supplied to the Service Provider;
4.1.7 to the extent permitted by law, rule and regulation (including any court order), keep the Service Provider informed of any actual or threatened litigation or actual or threatened investigation by any judicial, regulatory or tax authority of which it is aware against the Serviced Entity or its affiliates or any of its or their assets or which may be relevant to the Service Provider (or its reputation) or any beneficiary of the indemnity in paragraph 11 of these Terms and Conditions and to provide the Service Provider with such information as it may reasonably require in relation thereto;
4.1.8 not to introduce or permit to be introduced into its assets, any asset which is derived from or otherwise connected with illegal activity;
4.1.9 not to engage in or be directly or indirectly involved in any unlawful activity or purpose; and
4.1.10 not produce, publish or distribute any promotional or other materials (“Materials“) which mention or refer to the Service Provider (or its intellectual property, address, telephone numbers, fax numbers, email addresses or website addresses), or any of its staff, services or businesses, or make any representations in respect thereof without in each case first obtaining the Service Provider’s written approval (such approval not to be unreasonably withheld or delayed) of such mention or reference prior to the publication or distribution of the Materials. However, nothing in this paragraph 4.1.10 shall prevent the Serviced Entities from referring to the Service Provider in any Materials relating to the Serviced Entities where such reference is required by the Serviced Entities in order to comply with its obligations under applicable law.
DUTIES OF THE SERVICE PROVIDER